Community bills: Debt and statute of limitations

Shared expenses are obligatory for every property owner. However, someone in the community may be in arrears with their bill payments. What do you do if this situation arises in your building? We answer this and other questions below.

What happens if I don’t pay my community fees?

Non-payment of community fees is one of the community property issues that creates the most questions. To this end, it is important to know that property charges are the owner’s responsibility. This is supported by Article 9 of the Horizontal Property Act. If an owner fails to pay the relevant charges, the community of owners can take legal action.

But what if I rent my apartment out? Do I still have to pay community fees? It doesn’t matter, for example, if the owner and the tenant have signed a rental agreement under which the tenant is responsible for the payments. This is an agreement between both parties but has no validity against third parties. In other words, if the tenant fails to pay the community bills, the owner remains liable for the debt.

Can a debt be claimed if you’re no longer the owner?

Any fees not paid while the defaulter owned the dwelling can be claimed, as long as they have not lapsed under the law. Or, equally, when the property changes ownership, the community can claim the amounts owed from the new owner. In fact, Article 9, Paragraph 3 of the Horizontal Property Act says that:

“The purchaser of a dwelling or building under the community of property owners regime, even with the title registered on the property registry, is liable for any debts owed to the community of owners in respect of the purchased property, for the general expenses accrued by the previous owners, up to the limit of those resulting from the overdue part of the annual community fee payable for the year in which the purchase was made and for the previous three calendar years”.

Removal of the owner’s right to vote due to non-payment of community fees

This measure is designed to encourage payment of community of owners debts. If an owner does not pay the community fees, the community can deprive the owner of his/her right to vote at owners’ meetings pursuant to Article 15, Clause 2 of the Horizontal Property Act. In this case, the owner has two alternatives:

• Challenge the unpaid debt through legal action against the community, before the owners’ meeting is held.
• Deposit with a court or notary of the amounts owed. In this case, the owner may attend the owners’ meeting but under no circumstances exercise his/her right to vote.

Can I be evicted for not paying?

Yes. If an owner fails to pay the community fees, and ends up with a judgment against him or her, when requesting the enforcement of the judgment, a seizure of assets can be sought. The order of preference set out in the Act shall be followed in the seizure procedure.

• Cash or bank accounts
• Receivables, financial instruments, securities, and rights realisable immediately or in the short term.
• Wages, salaries, and pensions.
• Real estate
• Interest, income, and profits of all kinds.
• Commercial or industrial establishments.
• Precious metals, jewellery, and antiques.
• Movable or self-moving property.
• Receivables, financial instruments, securities, and rights realisable in the long term.

Once repossessed, it would be recorded in the land registry, so the obligation would remain if the property was sold. In some cases, an auction of the property may be requested in order to “liquidate” the debt.

When are you considered a defaulter in a community of owners?

In truth, there is no minimum amount of fees that can be claimed from a defaulting owner. This means that it is possible to claim up to the non-payment of a single bill, whatever its amount.

What can the community do with a defaulting owner?

There are a number of steps the owners’ meeting must take to legally claim unpaid community bills. The first is the calculate the full amount of the unpaid fees to ensure there are no errors. The second is to claim the payment from the owner amicably. This initiative must be recorded in the agenda when the meeting is called. The aim is simply to report that claim proceedings have commenced to try to adopt decisions regarding the default situation. Next, the meeting call must be sent to all community residents, including the defaulter, in accordance with the provisions of the Horizontal Property Act.

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If the debt cannot be settled amicably, the legal claim must be agreed to at the owners’ meeting. As part of this process, it is important that all unpaid fees be duly detailed in the minutes. Lastly, the community of owners has to submit the claim to the court.

Time limits on debts with a community of property owners

In 2015, an amendment was made to Article 1964 of the Civil Code governing the statute of limitations for claiming community debts. This period changed from 15 years to just 5. If after 5 years the community doesn’t claim any unpaid debts, they’ll lapse. It is important to understand that the community of owners can suspend the statute of limitations by sending a Burofax (a method of sending documents securely) to the owner stating the existence of the debt and its total amount.

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